ONTARIO

SUPERIOR COURT OF JUSTICE

COURT FILE NO.: 6739/12
DATE: 2013-07-16

B E T W E E N:

Milan Tomislav Cacic

Jerry J. Chaimovitz, for the Applicant

Applicant

• and -

Dolores Cacic

Logan A. Rathbone, for the Respondent

Respondent

HEARD: June 24, 25 and 26, 2013

REASONS FOR JUDGMENT

SPROAT, J

INTRODUCTION

1During the trial the parties referred to each other and witnesses by their first name and I will do the same.

2Milan applied under the Hague Convention to have his two children Amanda age five and Erik age three returned to Croatia.

3Milan was born in Canada but has resided in Croatia for 31 years. Dolores, the mother of the children, is of Croatian descent and was born in the United States. She also previously lived in Canada for nine years while married to a Canadian citizen.

4The parties met in Croatia and were married there on October 21, 2006. They resided there and their children were born in Croatia.

5The parties agree that this case turns on credibility and findings of fact as to the intent of the parties respecting their habitual residence.

POSITION OF THE PARTIES

6The evidence of Milan is that he was persuaded to go on a vacation to North America. During the vacation it developed that Dolores wanted to settle in Ontario but he never shared that intention.

7The evidence of Dolores was that they were both dissatisfied in Croatia and interested in relocating to North America. The purpose of the trip was to search for opportunities in North America. They ultimately decided to become resident in Ontario.

THE WITNESSESS

8Milan gave evidence and also called evidence from his mother Katia and his brother Luka.

9Dolores testified and also called evidence from Milan’s cousin Milka Butina who resides in Milton, Ontario. Additional evidence was received from Ms. Grewal of the Halton Children’s Aid Society and Detective Knight of the Halton Regional Police.

OVER VIEW OF THE FACTS

10In Croatia Milan and Dolores resided in the same house as Katia and Luka. Milan had a business which consisted of booking tourists in to local accommodation. He was quite busy during the summer months, however, during other parts of the year there was relatively little work to do and he could respond to inquiries online.

11The original itinerary provided that the parties and their children would travel from Croatia to Toronto on October 31, 2011; Toronto to Cleveland November 1. The return trip was Cleveland to Toronto to Croatia on January 24, 2012.

12In fact the time spent in North America (dates are approximate) was as follows:

(a) October 31-Late November - Cleveland visiting Dolores’ sister and her family;

(b) Late November-December 18 - visiting Dolores’ relatives in Thornhill, Ontario;

(c) December 18-January 3 - visiting Milka and her family in Milton, Ontario;

(d) January 4-January 15, 2012 - visiting Dolores’ sister in Cleveland and Milan visited Memphis;

(e) January 15-22 - Thornhill;

(f) January 22-February 15, 2012 - Milton; and

(g) February 15-28 - Dolores and children moved to women’s shelter. Milan continued to reside with Milka and her family in Milton. On February 28, Milan returned to Croatia.

13Dolores identified a number of reasons both she and Milan were dissatisfied in Croatia which included:

(a) Limited employment opportunities and lower standard of living;

(b) Some financial difficulty;

(c) Lack of confidence in the health care system, based upon their belief doctors had mis-diagnosed Milan’s father who died and Amanda;

(d) Sharing a house with Milan’s mother and brother that was not suited to raising young children; and

(e) Parts of the home being occasionally rented to tourists.

GENERAL COMMENTS ON CREDIBILITY AND RELIABILITY

14No judge has the ability to be absolutely certain as to what occurred when there are sharply conflicting versions of events. My obligation, however, is to find the facts that are probably true and base my decision on that.

15In this case, Milan’s version of family life in Croatia and the intention in leaving to come to North America was supported by his mother and brother. They all lived under the same roof in Croatia. They all love the children and obviously want to see them back under the same roof in Croatia. Their evidence certainly could be, and I believe was, substantially affected by their family allegiances.

16Dolores’ evidence on certain key points was supported by Milka who was Milan’s cousin and was referred to as his “aunt” given their relative ages. Milka did not even know Dolores’ name prior to their arrival in Canada. She had no apparent motive to shade her evidence to favour Dolores. In fact any apparent motive would be to favour Milan. Milka gave her evidence in a straight forward manner. There were no serious inconsistencies. I, therefore, accept that her recollection of the facts is both credible and reliable.

17While I appreciate that my decision must be based on the totality of the evidence, I will discuss individual aspects of the evidence which bear on the mutual and settled intentions of the parties.

INTENT IN COMING TO NORTH AMERICA

18I have already made brief reference to the evidence of Milan and Dolores. I note that if Dolores was inclined to lie it would have been a simple matter for her to have given evidence of a settled intention to relocate to North America prior to leaving Croatia. In fact she readily acknowledged that they were undecided.

19It is, however, significant that Milka testified to a conversation with Katia in which Milan’s mother told her that Milan and Dolores had plans to move to North America for a better life. I consider this evidence only as a prior inconsistent statement going to the credibility of Katia.

RETURN TICKETS

20The tickets were originally obtained by friends of Dolores using points. While obtaining return tickets weighs in favour of an intention to continue residence in Croatia the weight is diminished because, as Dolores testified, even if they relocated they needed to wind up matters in Croatia and they all might need to return their for a time. The extension of the tickets for one month, at a cost of $800 also weighs in favour of an intention to continue residence in Croatia but again the weight is diminished for the reasons I have explained.

U.S. APPLICATIONS FOR EMPLOYMENT-SOCIAL ASSISTANCE

21While in Cleveland Dolores, an American citizen, applied for social assistance and as a condition was required to apply for employment. Milan was aware of this.

22Applying for social assistance and employment is not something one typically does on vacation. Further, as a matter of common sense and experience, social assistance is not typically granted to someone who indicates that they are ordinarily resident and employed in another country and on vacation.

23This evidence weighs heavily in favour of a mutual intention to relocate and is consistent with Dolores’ evidence of testing the waters to determine whether they wish to reside in Canada or the United States.

CHIRSTMAS CARD

24Dolores and Milan helped the children write a Christmas card to send to Croatia which contained an expression which Milan translated as “see you soon”. Milan contended this was evidence of an intention to continue to reside in Croatia.

25I find this is weak evidence because, as Dolores said, it is a common and somewhat vague expression. Further, given that her father also resides in Croatia, and that they needed to deal with outstanding matters in Croatia, the greeting accurately reflected they would see their relatives soon even though the plan was to reside in North America.

OHIP

26Milan applied for and obtained OHIP coverage. Whatever application forms were actually signed were not put in evidence. During argument I asked that counsel advise me in writing if there were any regulations that were applicable. Mr. Rathbone did so by letter dated July 3, 2013.

27As referenced in Mr. Rathbone’s letter, a matter of law, OHIP coverage is only available to a person whose primary residence is in Ontario. The applicable regulation defines “primary place of residence” as

“the place with which a person has the greatest connection in terms of present and anticipated future living arrangements, the activities of daily living, family connections, financial connections and social connections, and for greater certainty a person only has one primary place of residence, no matter how many dwelling places he or she may have, inside or outside Ontario.”

28Further, at the relevant time the Regulations prescribed application forms for OHIP coverage. What appears to be the application form for new coverage requires the applicant to provide the date when the applicant took up permanent residence in Ontario. For OHIP re-registration the applicant had to confirm that he or she made and intended to continue on making Ontario their primary residence and that he or she will be physically present in Ontario for at least 153 days in any 12 month period.

29In his letter of July 11, 2013, Mr. Chaimovitz objected to arguments based upon what the application forms would presumably have contained. He also pointed out that the parties were not questioned on their understanding of how “resident” or “residence” was defined in the legislation.

30The Answer makes reference to applications for OHIP coverage, a SIN and Ontario Works’ benefits. Mr. Chaimovitz is, however, correct neither the pleading nor the cross-examination suggested that the applications constituted a claim or admission by Milan that he resided in, and intended to continue to reside in, Ontario.

ONTARIO WORKS BENEFITS

31Similar to OHIP, in order to obtain Ontario Works social assistance, a person must be resident in Ontario. Milan applied for and was paid benefits for the period January 27-February 29, 2012.

APPLICATION FOR RENT GEARED INCOME HOUSING

32While this form was never actually submitted, Milan and Dolores signed an application form on or about February 8, 2012.

33Further and more importantly the application for subsidized housing obviously evidences an intention to remain in Ontario for an extended period and, as a matter of common sense and experience, is not a benefit made available to people on vacation.

EMPLOYMENT IN ONTARIO

34Through a family connection (her daughter’s father-in-law) Milka was able to obtain employment for Milan. She testified that Milan said the interview went well and that while he was hired for a manual labour position, it was indicated to him that he might have a future at the company in sales due to his personality and fluent English.

FEBRUARY 15, 2012 - SEPARATION

35On February 8, 2012, Dolores went to see Ms. Grewal of the Halton Children’s Aid Society.

36On February 15, 2012, Dolores left the Butina residence in Milton and went to a women’s shelter. Ms. Grewal interviewed her again on February 23, 2012. Ms. Grewal testified that Amanda told her that Milan had pulled her hair, hit her in the forehead area, that he gets very angry and she is afraid of him.

37On February 24, 2012, Ms. Grewal interviewed Milan and advised him of the allegations that had been made. She agreed that Milan never lost his temper in meeting with her and was respectful.

EVIDENCE OF ABUSE

38Dolores testified to verbal abuse beginning soon after the marriage. In particular Milan expressing vile and bigoted comments regarding various groups. There were only a couple of incidents involving physical abuse. One involved grabbing her by the wrist and causing bruising and the other pushing her down.

39Milan’s father died in October 2010. Dolores testified that Milan’s drinking and abusive behaviour worsened after that. Dolores also described him as a being abusive and controlling to his mother and brother.

40Dolores testified that she was at least hopeful that a move to North America, and brighter prospects, would improve the family situation.

41She testified to further incidents of verbal as well as physical abuse, including physical abuse of Amanda, after coming to North America. Dolores testified that the incident involving Amanda was what finally led her to separate.

42Milka testified that after the separation Milan made a threat to kill Dolores and that, on a different day, Milan repeated the threat to kill Dolores as well as Ms. Grewal of Halton Children’s Aid Society (although she was not referred to by name).

43Milan denied any and all allegations of abuse or threats. His mother and brother testified they saw no evidence of abuse or threats in Croatia.

THE LAW

44There was no real dispute as to the applicable legal principles. I accept and proceed on the basis that the applicable law is as summarized at paragraphs 27-31, 34 and 43 of the Respondent’s Factum.

ANALYSIS AND CONCLUSION

45With respect to OHIP and Ontario Works, and given the points made by Mr. Chaimovitz in his letter, I do not presume Milan knew the legal definitions or infer that he knowingly signed application forms containing representations as to his residence.

46As a matter of common sense and experience I do find that applying for and obtaining health and social assistance benefits is much more consistent with an intent to remain in Ontario than it is with a vacation.

47I also accept Milka’s evidence and find that Milan took a job in Ontario looking at it as potentially long term employment. That is obviously strong evidence of a settled intention to remain in Ontario. Milan was in fact employed January 30-February 23, 2012.

48In general terms Milka’s evidence was that both Milan and Dolores planned to stay in Ontario. They lived under her roof and she had regular contact with them. Milka drove them to appointments and helped them fill out forms. Milka described Milan as supportive and engaged in the various steps taken to establish a life in Ontario. I accept her evidence.

49The evidence given by Milan is, therefore, contradicted by not only the evidence of Dolores but also by Milan’s own conduct. The documents he signed and the benefits he claimed were consistent with an intention to remain in Ontario and inconsistent with a time limited vacation. Milan’s evidence is also contradicted in important respects by his cousin Milka.

50On balance I accept and find as a fact that as of February 2012, Milan and Dolores shared a common intention to reside, and were habitually resident, in Ontario. As such the Hague Convention is not applicable.

51The alternative argument advanced by Dolores is that the children should not, in any event, be returned to Croatia because there is a grave risk that the return of the children would expose them to physical or psychological harm, or otherwise place them in an intolerable situation, pursuant to Article 13 (b) of the Hague Convention.

52I am satisfied that there is such a grave risk and that the children would be put into an intolerable situation if they were to return. As previously discussed there are a number of compelling reasons to prefer the evidence of Dolores and Milka to the evidence of Milan. I am satisfied based, upon the evidence of Dolores and Milka, that Milan has engaged in physical abuse of Dolores and Amanda, and just as significantly psychological abuse. I find as a fact that he did make the vile, bigoted and threating comments attributed to him by Dolores and Milka. I also accept the evidence of Dolores that, particularly given the small town the family resided in while in Croatia and Milan’s relationships with local officials, the risks that exist could not be mitigated by recourse to social service agencies.

53This Application by Milan is therefore, dismissed. If Dolores claims costs then she shall make written submissions within 14 days and Milan shall respond within a further 14 days.

54I will also repeat what I said in the end of the trial. I thank both Mr. Chaimovitz and Mr. Rathbone for presenting their client’s positions in a fair and effective manner.

Sproat, J